January 20, 2015 at 5:27 pm EST | by Chris Johnson
What to watch as Supreme Court considers marriage
Jeff Zarillo, Paul Katami, Sandy Stier, Kris Perry, David Boies, Chad Griffin, gay marriage, same-sex marriage, marriage equality, Proposition 8, Defense of Marriage Act, DOMA, Prop 8, California, Supreme Court, gay news, Washington Blade

The U.S. Supreme Court has chosen to consider the issue of marriage equality. (Washington Blade file photo by Michael Key)

Following the U.S. Supreme Court’s decision to hear cases seeking marriage rights for same-sex couples, supporters are hopeful that justices will find a nationwide right to marriage equality, but the process for getting there could prove chaotic.

On Friday, the Supreme Court granted certiorari in four cases seeking marriage rights for same-sex couples in Michigan, Ohio, Kentucky and Tennessee. The expectation is justices will deliver a nationwide ruling on the marriage issue by the end of June.

Along the way, prominent new voices will likely enter the debate in briefs filed before the court; lower courts may continue to make rulings on marriage or wait until the Supreme Court exercises its voice; and questions from justices during oral arguments could signal a more decisive ruling than some observers now predict.

Marc Solomon, national campaign director for the LGBT group Freedom to Marry, said his organization would seek to draw new voices in support of marriage equality to influence the court of public opinion as legal teams make their arguments in court.

“We will continue to look for allies and supporters who are less expected,” Solomon said. “We have our Texas for Marriage campaign, enlisting people in the South, enlisting Republicans, enlisting first responders who will stand up for their colleagues at risk who are gay or lesbian. We expect to be working extremely closely with the legal teams to help ensure that the collective presentation is as absolutely as powerful as it can be.”

The highest-profile voice expected to speak before the court on the marriage issue is that of the Obama administration. Shortly after the Supreme Court agreed to take up the marriage cases last week, U.S. Attorney General Eric Holder announced in a statement the Justice Department would argue in favor of marriage equality “for all Americans.”

Prior to the announcement, Holder had already to pledged to file a brief, although questions persisted over the extent to which the Justice Department would argue in favor of marriage equality. The outgoing attorney general’s new assertion the brief would argue “for all Americans” suggests the administration will maintain all state bans on same-sex marriage are unconstitutional, although the Justice Department didn’t respond to a request for further comment.

What also remains to be seen is the extent to which President Obama will take part in the brief. Obama, who’s credited with helping to facilitate the legal brief the administration filed against California’s Proposition 8, said afterward during a news conference in 2013 he “felt it was important for us to articulate what I believe and what this administration stands for.”

Suzanne Goldberg, director of Columbia University’s Center for Gender & Sexuality Law, said she would expect the administration to take the opportunity with its upcoming brief “to come out strongly in support of the right to marry for gay and lesbian couples.”

“It will be interesting to see whether DOJ relies on the same types of arguments it advanced in Windsor and Perry, or whether it expands on those arguments in light of the overwhelming trend toward marriage rights for same-sex couples,” Goldberg said. “Given the administration’s position to date, I think it would be important and appropriate for the federal government to support equal marriage rights throughout the nation.”

That would be a change from oral arguments against Prop 8 in 2013, when U.S. Solicitor General Donald Verrilli argued in favor of an “eight-state solution” — a ruling that requires all states with civil unions to afford marriage rights to same-sex couples — instead of marriage equality throughout the country. In an interview since that time, President Obama has said he thinks the U.S. Constitution “does guarantee same-sex marriage in all 50 states.”

Other voices that spoke out in favor of marriage equality in briefs before the Supreme Court in 2013 were business leaders, constitutional scholars and lawmakers.

Now that marriage is back before the Supreme Court, members of Congress are expected to speak out again. In 2013, an unprecedented coalition of 212 House and Senate Democrats joined in a friend-of-the-court brief to urge the Supreme Court to strike down DOMA.

A Democratic leadership aide, who spoke on condition of anonymity, said it’s “fair to say” members would have an interest in filing another brief on marriage, especially because the Justice Department plans to file one.

Another prominent friend-of-the-court brief before the Supreme Court in 2013 was signed by 131 Republicans in favor of striking down California’s Proposition 8.

The brief, organized by gay former Republican National Committee Chair Ken Mehlman, included prominent members of the GOP, such as former Utah Gov. Jon Huntsman, Jr., former California gubernatorial candidate Meg Whitman, former deputy secretary of defense Paul Wolfowitz, as well as Reps. Ileana Ros-Lehtinen (R-Fla.) and Richard Hanna (R-N.Y.).

Mehlman didn’t respond to the Washington Blade’s request for comment on whether another friend-of-the-court brief from Republicans would be forthcoming now that marriage has returned to the Supreme Court.

But Solomon said “there should be and I anticipate there will be” another Republican brief filed before the Supreme Court, noting GOP support for marriage equality has grown since 2013.

“We know the assets that we have, the support that we have, the support has grown pretty significantly since last go around,” Solomon said.

Republicans that have recently come out for same-sex marriage and could be new names on a Republican brief include Reps. Charlie Dent (Pa.) and David Jolly (Fla.) as well as Sens. Susan Collins (Maine), Rob Portman (Ohio), Lisa Murkowski (Alaska) and Mark Kirk (Ill.). Other such Republicans are newly seated Reps. Robert Dold (Ill.) and Carlos Curbelo (Fla.) as well as Massachusetts Gov. Charlie Baker.

More voices in support of marriage?

Voices two years ago in favor of marriage equality weren’t limited to the legal briefs in the court. Numerous public officials — including members of the Senate from both sides of the aisle — went public for the first time in favor of same-sex marriage.

These officials included Republicans like Portman, Murkowski and Kirk and Democrats like Claire McCaskill (Mo.), Mark Warner (Va.) and recently unseated Sen. Kay Hagan (N.C.).

Solomon predicted new voices for marriage equality will emerge — from Congress and other arenas — as the Supreme Court considers the issue.

“I do expect — and we will be pushing hard for — different leaders, political leaders and business leaders and others to announce their support in advance of oral arguments,” Solomon said. “This’ll be the last time people will have the chance to take a position on the right side of history before the Supreme Court issues its ruling.”

Although Solomon had no names of public officials whom he would envision endorsing marriage equality, he said he’d “love to get more Republicans on board.” A majority of U.S. senators supported same-sex marriage prior to the 2014 election, but that number was reduced to 49 after the Republican wave.

The lone Democrat in the U.S. Senate who still doesn’t support same-sex marriage is Joe Manchin of West Virginia, even though his state now has marriage equality. His office didn’t respond to a request for comment on his position on gay nuptials.

Solomon said an endorsement from Manchin on marriage “would be helpful” now that the issue has returned to the Supreme Court.

“We’d obviously like to see him come our way so we could be able to say that every Democrat in the United States Senate is with us, particularly because same-sex couples are marrying in the state of West Virginia,” Solomon said. “It would be nice and helpful to see him on the side of those families in his state.”

What actions will lower courts take?

As litigation proceeds before the Supreme Court, a number of lower courts at the district and appellate level will make decisions on pending litigation seeking marriage rights for same-sex couples.

Judges in these cases can either opt to continue and issue rulings on same-sex marriage to make their views known, or hold off to await further guidance from the Supreme Court.

The most advanced of these lawsuits is a trio challenging bans on same-sex marriage in Texas, Mississippi and Louisiana before the U.S. Fifth Circuit Court of Appeals. Earlier this month, a three-judge panel heard oral arguments in these cases and seemed ready to rule 2-1 against prohibitions on same-sex marriage.

Given the near completion of this litigation at the appellate level, Columbia University’s Goldberg said the Fifth Circuit may issue a ruling despite the impending Supreme Court review.

“It wouldn’t surprise me if the Fifth Circuit went ahead and issued its ruling to contribute to the Supreme Court’s sense of what the lower courts think about the issue, but certainly they could hold off,” Goldberg said.

Meanwhile, plaintiff couples appealed litigation seeking marriage equality in Puerto Rico to the U.S. First Circuit Court of Appeals, but oral arguments haven’t been scheduled. The same holds true for a Florida case where same-sex couples have prevailed, although the litigation remains on appeal before the U.S. Eleventh Circuit Court of Appeals.

Litigation seeking marriage equality in Missouri and Arkansas has been appealed to the U.S. Eighth Circuit Court of Appeals, but no action has been taken yet.

“I think what the courts might do will vary depending how far along each is, so that’s what I would expect,” Goldberg said.

Joshua Nevwille, an associate attorney at the Minneapolis-based Madia Law LLC and co-counsel for cases in North Dakota and South Dakota, urged the district courts to take action on the litigation as the Supreme Court considers the issue.

In the North Dakota case, Chief Judge Ralph Erickson halted the litigation on Tuesday — after it had been pending for five months — to await Supreme Court guidance. In the South Dakota case, Nevwille is calling on the district court to lift its stay on a decision against the state’s marriage ban in a recently issued decision.

“Why is it fair to South Dakota couples that there doesn’t need to be a stay in place on the Eleventh Circuit in Florida while that case goes through the appeals, but for some arbitrary reason there needs to be one in place in South Dakota in the Eighth Circuit?” Nevwille said.

If the district court refuses to lift its stay, Nevwille pledged to take up the matter with the Eighth Circuit, and if the answer’s the same, said he’d call on the U.S. Supreme Court to lift the stay as it considers matters in related litigation.

Where will justices go in oral arguments?

The Supreme Court is set to hear two-and-a-half hours of oral arguments in April in the four marriage cases it has taken up. Those arguments may provide clues on how the justices intend to rule and the breadth of the ruling.

A number of mainstream media outlets — including The Washington Post and The New York Times — have raised concerns about the questions the court posed in the orders signaling it would take up the marriage cases.

One is whether the Fourteenth Amendment prohibits a state from banning same-sex couples from marrying, the other is whether it prohibits a state from banning recognition of same-sex marriage performed elsewhere. Some legal observers saw those question as an attempt to limit the ruling, or perhaps to find rights for same-sex couples under one question, but not the other.

But Goldberg didn’t read much into the question posed by the courts, saying they were a consolidation of questions posed to justices in the petitions for writ of certiorari.

“Those are the questions that the cases present,” Goldberg said. “The cases present whether states should allow [same-sex] marriage, and whether states should recognize other states’ marriages. I didn’t see as turning in the way that some commentators have suggested.”

It’s widely assumed the five justices that ruled to strike down Section 3 of the Defense of Marriage Act — U.S. Associate Justices Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — will be favorable to striking down bans on same-sex marriage.

But could other justices join them? After all, the only two justices to dissent in multiple orders declining stays on lower court rulings on same-sex marriage were U.S. Associate Justices Antonin Scalia and Clarence Thomas.

That means U.S. Chief Justice John Roberts and Samuel Alito, despite their conservative reputations, joined with others in declining to stay same-sex nuptials. If those two were to join the other five, it would make for a 7-2 nationwide decision striking down bans on same-sex nuptials.

“It’s hard to predict what their votes on the stay will mean for their analysis of the case on the merits, but certainly these are not bad signs and they’re possibly good signs,” Goldberg said.

The definitive moment on what the justices think won’t be the oral arguments in April, but likely weeks later in June, when the final decision is expected to come down from the court on same-sex marriage.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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